United States v. Hankton, Clarence ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2345 & 03-2915
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLARENCE HANKTON and
GREGORY DAVIS,1
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 CR 1—Charles R. Norgle, Sr., Judge.
____________
ARGUED MAY 11, 2005—DECIDED DECEMBER 29, 2005
____________
Before COFFEY, MANION and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. In a superseding indictment
dated May 15, 2002, Clarence Hankton, Greg Davis and six
other co-conspirators were charged in the United States
District Court for the Central District of Illinois with
conspiracy to possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2. The indictment also alleged that the defendants
participated in various other drug-related crimes arising
out of their membership in, and affiliation with, the
1
In an order dated July 16, 2003, this court consolidated the
appeals in this case for the purposes of briefing and disposition.
2 Nos. 03-2345 & 03-2915
“Mickey Cobras” (“MCs”) street gang, which operated on the
north-side of Chicago, Illinois during the 1980s and 1990s.2
On November 21, 2002, Hankton signed a plea agreement
in which he admitted distributing approximately 156 grams
of cocaine base to a confidential informant, in violation of 21
U.S.C. § 841(a)(1). The following day, Davis also agreed to
plead guilty to possessing, with the intent to distribute,
approximately 250 grams of cocaine, also in violation of 21
U.S.C. § 841(a)(1). Hankton was subsequently sentenced to
a term of 300 months in prison, while Davis was sentenced
to 210 months. On appeal, both men challenge the district
court’s application of the guidelines to their sentences and
claim that they are entitled to be re-sentenced in accor-
dance with the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220 (2005). We uphold the validity of
both Hankton and Davis’ sentence, but remand to the
district court for further consideration as mandated by this
court’s decision in United States v. Paladino, 401 F.3d 471(7th Cir. 2005).
I. BACKGROUND
During the late 1980s and early 1990s, Clarence Hankton
and Gregory Davis were prominent members of the MCs, a
dangerous and violent street gang that operated primarily
out of housing projects on the north-west side of Chicago.
The gang’s various criminal undertakings were coordinated
2
Hankton and Davis were also charged with the knowing and
intentional use of a communication facility (i.e., a telephone) in
the commission of a felony (distribution of a controlled substance),
and four separate counts of knowing and intentional distribution
of cocaine base, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. §
2. In addition, Hankton was charged with four separate counts of
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
and Davis was charged with possession with intent to distribute
cocaine, also in violation of 21 U.S.C. § 841(a)(1).
Nos. 03-2345 & 03-2915 3
through a hierarchical-type infrastructure and included, but
were not limited to, the possession and distribution of
powder cocaine and cocaine base (better known as crack).3
In October 1999, the Federal Bureau of Investigation
(“FBI”) began investigating the MCs, utilizing confidential
informants,4 FBI surveillance and pen registers to gain
information on the organization.5 Information gathered in
the initial operational phase of the investigation allowed
law enforcement officers to gain a preliminary understand-
ing of the gang’s structure. Specifically, investigators
learned that both Hankton and Davis held leadership roles
in the MCs. Indeed, the evidence obtained by investigators
made clear that Hankton had, over a period of years,
progressed through the hierarchy of the MCs and attained
the position of “King of Kings,” or leader of the MCs on the
entire north side of Chicago. Meanwhile, Davis held the
position of “Sultan Supreme,” a lieutenant and leader of the
3
Cocaine base, better known as “crack” cocaine, is produced by
“cooking” or mixing powder cocaine (cocaine hydrochloride) with
sodium bicarbonate and boiling the mixture until left with a
rocklike formation of pure “crack” cocaine (cocaine minus the
hydrochloride). See United States v. Puckett, 405 F.3d 589, 597 n.8
(7th Cir. 2005); United States v. Edwards, 397 F.3d 570, 574 (7th
Cir. 2005).
4
During the investigation, the FBI temporarily used a member
of the MCs to serve as a cooperating witness. The informant
agreed to wear an undercover recording device while interact-
ing with Hankton.
5
“A pen register is a mechanical device that records the numbers
dialed on a telephone by monitoring the electrical impulses caused
when the dial on the phone is released.” United States v. New York
Tel. Co., 434 U.S. 159, 161 n.1 (1977). A pen register is “usually
installed at a central telephone facility [and] records on a paper
tape all numbers dialed from [the] line” to which it is attached.
United States v. Giordano, 416 U.S. 505, 549 n.1 (1974).
4 Nos. 03-2345 & 03-2915
MCs at a particular locale—in this instance the Lathrop
Homes projects on the north-west side of the city.
Despite success in the early stages of the investigation, in
the Spring of 2000 investigators came upon a situation
where the amount of information they required in order to
sustain the issuance of criminal charges against members
of the gang could no longer be safely obtained through the
investigative techniques they were currently employing (i.e.,
without putting agents in danger).6 That being the case, the
FBI applied for and received a court order authorizing a
wiretap of Hankton’s cellular phone.7 While monitoring the
wiretap, FBI agents recorded a number of inculpatory
conversations between Hankton and his associates during
the months of June, July and August of 2000.8 The recorded
conversations implicated Hankton, Davis and various other
individuals in the trafficking and distribution of drugs, as
well as other types of gang-related criminal activities and
violence. The wiretaps also provided the FBI with further
insight into Hankton and Davis’ respective leadership roles
in the MCs as well as more specific information on the
hierarchal structure of the organization. Armed with this
information, the government obtained arrest warrants for
19 individuals connected with the MCs and, on January 2,
6
For example, the government was unable to “obtain conclusive
information about Hankton and Hankton’s associates . . . without
arousing suspicion.” Additionally, “the use of undercover agents
[was determined to] be impractical and dangerous due to the
‘highly suspicious’ nature of the alleged offenders.”
7
The wiretap was granted pursuant to Title III of the Omnibus
Crime Control and Safe Street Act of 1968, 18 U.S.C. §§ 2518(1)(b) & (c).
8
The initial intercept ran from June 15 to July 14, 2000, when
the warrant expired. An extension was applied for and granted on
July 20, 2000, and allowed continued surveillance through August
18, 2000.
Nos. 03-2345 & 03-2915 5
2001, Hankton and Davis were apprehended on allegations
of conspiring to possess cocaine and crack with the intent to
distribute, in violation of 21 U.S.C. §§ 841 and 846.
Following the arrests, on July 3, 2001, Hankton and
Davis, along with six9 other individuals, were indicted inter
alia on drug conspiracy and drug possession charges.10 As
discussed infra, Hankton and Davis entered into separate
plea agreements with the government and each of them
admitted facts sufficient to establish criminal liability
beyond a reasonable doubt. In addition, both defendants
and the government agreed to “reserve their respective
right[s] to argue their [respective] position[s]” during post-
conviction proceedings concerning certain factual issues
relating to the sentencing aspect of the proceedings.
A. Hankton’s Sentencing Hearing
In accordance with Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure Hankton pled guilty to three counts
9
Among the co-defendants were Woodrow Green, Jammah Olden,
Rasuah Brunner, Ngaya Brunner, Timeka Murdock and Mekeba
Gates, many of whom were also members of the MCs and all
of whom also entered into plea agreements with the government.
10
In a nine count superseding indictment issued on May 15, 2002,
the grand jury charged both Hankton and Davis with “participat-
ing in a conspiracy to possess with intent to distribute and to
distribute in excess of 500 grams of . . . cocaine and in excess of 50
grams of [crack cocaine]” (Count I) and using communication
devices in committing the conspiracy (Count VII) in violation of 21
U.S.C. §§ 841 and 846. Also, Hankton and Davis were each
charged with additional counts; Hankton was charged with
“knowingly and intentionally” distributing over 150 grams of
crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts II, III,
IV, and V) and Davis was charged with “knowingly and intention-
ally possessing with intent to distribute . . . approximately 250
grams of cocaine in violation of 21 U.S.C. § 841 (a)(1)” (Count VI).
6 Nos. 03-2345 & 03-2915
of distribution of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). As part of the plea agreement, Hankton admit-
ted that on three separate occasions in Cook County,
Illinois, between February and April 2000, he distributed a
total of approximately 156 grams of crack to an individual
who, unbeknownst to him, was a confidential informant
recruited by the FBI.
Hankton’s plea agreement also set forth his disagreement
as to the two enhancements proposed by the government
under the sentencing guidelines: one concerning the drug
quantity involved and another pertaining to Hankton’s
alleged leadership role in the offense. As to the quantity of
drugs Hankton should be held responsible for, it was the
government’s position that, pursuant to U.S.S.G. §
2D1.1(a)(3), Hankton’s base offense level was 34 due to the
aggregate amount of drugs involved in the offenses he
admitted to, i.e., more than 150 grams of crack. Nonethe-
less, the government insisted that “based on [Hankton’s]
offense conduct and relevant conduct” he was actually
responsible for distributing more than 500 grams of crack,
which would result in an offense level of 36. In addition, the
government contended that Hankton’s offense level should
be “increased by 4 levels because the defendant was an
organizer and leader of criminal activity that involved five
or more participants,” pursuant to U.S.S.G. § 3B1.1(a).11
To support the proposed guidelines enhancements, the
government presented evidence detailing Hankton’s role as
a “leader or organizer” within the MCS organization.
Bearing upon this was testimony given by a number of
prosecution witnesses who confirmed Hankton’s involve-
ment in the murder of Annette Williams, a fellow member
11
Subtracting 3 points for Hankton’s acceptance of responsibility,
see U.S.S.G. § 3E1.1, the government recommended that
Hankton’s requisite offense level should be 37 and that, due to the
fact his criminal history category was at level III, the appropri-
ate sentencing range was 262 to 327 months.
Nos. 03-2345 & 03-2915 7
of the MCs, in April of 2004. Chicago Police Detective
Kenneth Charles, one of the officers charged with investi-
gating Williams’ murder and a court recognized expert on
the MCs, related information that he uncovered which led
him to believe that Hankton had ordered the beating that
resulted in Williams’ death. Based on his understanding of
the inner-workings of the MCs, Charles stated that on April
12, 2004, Williams had been issued a severe beating or
“violation” as the MCs called it, for allegedly stealing
approximately $3,000 from the gang. As Charles explained,
Hankton held the position of “don” or foreman of the MCs
at the Cabrini-Green housing project where Williams lived,
and had the authority to order a “violation” of this kind.
What’s more, Detective Charles testified that he personally
witnessed Hankton standing with several other men in the
parking lot of Williams’ building at 1150-60 North Sedgwick
Street, from 8:00-10:00 p.m. the evening of her murder.
To corroborate Detective Charles’ testimony, the govern-
ment introduced sworn statements from two sub rosa
government witnesses, identified in the record only as A
and B.12 In their statements both witnesses identify
Hankton as the “don” or leader of the MCs at Cabrini-
Green. A and B’s statements also unequivocally acknowl-
edge that the order to beat or issue a “violation” to Wil-
liams—which resulted in her death—was issued by
Hankton personally.13 They also related that the “viola
12
The district judge mandated that the names of the witnesses be
kept confidential, due to the fact that they feared retribution from
the gang for their statements. In addition, the judge agreed to
maintain the two witnesses statements under seal on the similar
grounds.
13
The statements did suggest that the original order to issue
Williams a beating may have emanated from, or been approved
by, a higher authority in the gang; however, A and B agree that
(continued...)
8 Nos. 03-2345 & 03-2915
tion” or beating was ordered because Williams had stolen
some money from the gang.
The government next introduced evidence directed
towards establishing that Hankton was responsible for
distributing more than 500 grams of crack cocaine, as
opposed to the 150 grams he admitted to distributing. Agent
Darin, a member of the FBI’s joint gang task force and a
trained drug traffic investigation agent, testified concerning
Hankton’s coordination of the drug trade for the MCs as
well as his role as “King” or leader of the gang throughout
the city in 2000 and 2001. In order to assist the court in
understanding Hankton’s role in the drug trade, Agent
Darin—based on his training and four years of experience
with drug investigations—testified as to his interpretations
of the conversations extracted from the FBI’s wiretap
recordings, which were replete with code language.14
13
(...continued)
the order to beat Williams came to them directly from Hankton.
14
The members of the gang used phrases such as “a 16th” or a
“teenager” to refer to 1/16th of an ounce of crack cocaine, “eight-
ball”, “ball” or “Michael Jordan” to refer to 1/8 of an ounce of crack
cocaine, “quarter”, “quaker” or “quake” to refer to 1/4 of an ounce
of crack cocaine and “onion”, “zone” or “piece” to refer to a whole
ounce of crack cocaine. As this court has previously noted “[i]t is
well known that drug dealers commonly use code language out of
fear that their conversations will be intercepted.” United States v.
Harris, 271 F.3d 690, 702 (7th Cir. 2001). Indeed, as we noted in
United States v. Vega:
Conversations regarding drug transactions are rarely clear.
A fact-finder must always draw inferences from veiled
allusions and code words. In this case the jury was confronted
with conversations which contained “code words” that, when
considered in isolation, might seem unclear, veiled and
almost nonsensical, but when analyzed properly, in the
context of the totality of the evidence, can clearly be seen to
(continued...)
Nos. 03-2345 & 03-2915 9
Specifically, Darin provided background for a number of
controlled drug purchases (from Hankton) conducted by the
FBI15 and described admissions by the co-defendants that
they purchased varying amounts of crack cocaine from
Hankton. In one conversation with a MCs associate, for
example, Hankton is asked whether he “got that butter?”.
Hankton responds that “[i]t’s . . . guaranteed.” Agent Darin
testified that “butter” was a common code word for cocaine
and that the two were actually discussing the future sale of
either crack or powder cocaine. In another conversation,
14
(...continued)
be “code words” for drugs. . . . It is true that, advisedly, no
explicit mention was ever made of cocaine or other drugs in
any of Vega’s conversations with the Zambranas. However, a
case was made, which was more than strong enough to
convince the jury, that Vega used terms like “chickens,”
“roosters” and “it” as code words for drugs. Not only are code
words always used by drug conspirators when they realize, as
they do in today’s drug culture, that their telephone conversa-
tions are frequently intercepted, such term were obviously
used by the conspirators in this case. . . . [W]e have frequently
upheld conspiracy determinations made by judges and juries
which have relied upon inferences that “code words” or
obscure language were meant to refer to drugs.
Harris, 271 F.3d at 702-03 (quoting United States v. Vega, 860
F.2d 779, 798 (7th Cir. 1988), abrogated on other grounds by
United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990)). As
explained infra, the rules of evidence do not apply at sentencing,
thus the judge’s decision to consider the code language testimony
given by Agent Darin was squarely within his discretion. See, e.g.,
United States v. Hardamon, 188 F.3d 843, 849 (7th Cir. 1999).
Also, as the factfinder at sentencing, the judge was free to draw
whatever conclusions he might about the testimony given and
evidence introduced in order to determine an appropriate sen-
tence. See, e.g., United States v. Sutton, 406 F.3d 472, 474 (7th
Cir. 2005).
15
Through the use of the cooperating witness, the FBI was able to
conduct a number of controlled purchases of crack cocaine.
10 Nos. 03-2345 & 03-2915
Darin described a conversation between Hankton and co-
defendant Jammah Olden, where Olden requests that
Hankton supply him with: “About a half.” Darin testified
that, “a half”, as used in that particular context, referred to
one half-ounce of crack cocaine. The government estimated
that, based on Agent Darin’s testimony and the wiretap
evidence alone, Hankton was responsible for distributing
approximately 456 grams of crack cocaine.16
Agent Darin also testified concerning Hankton’s ascension
from the role of “don,” the title he held in the mid-1990s, to
“King,” the title he held from 1999 to 2001. As the “King,”
Hankton was responsible for everything from the direction
of the conversion of powder cocaine into crack to the
organization of the gang’s basketball games. Hankton’s role
as “King” was also supported through Agent Darin’s
description of physical evidence that was confiscated from
Hankton’s residence upon a search warrant—such as letters
calling Hankton the “King”, statues of cobras wearing
crowns and jewelry of crowns—all referring to Hankton’s
leadership position in the gang as the “King of Kings.”
In order to corroborate Agent Darin’s testimony, the
prosecution called one of Hankton’s co-defendants, Jammah
Olden. Also a member of the MCs, Olden recounted that the
main source of revenue for the gang was the sale of illegal
drugs. Olden stated that Hankton regularly supplied him
with crack (not powder cocaine) which he was instructed to
16
The record reflects that most of the large “wholesale” purchases
involved powder, as opposed to crack, cocaine. Nonetheless, as
Agent Darin’s testimony and the phone conversations established,
Hankton dealt primarily in crack and the large “wholesale”
purchases were made with the intent of converting the powder
cocaine into crack.
Nos. 03-2345 & 03-2915 11
sell to others.17 Specifically, Olden testified that beginning
in June of 2000 (until approximately October of 2000)
Hankton had personally supplied him with amounts of
crack cocaine ranging from one-eighth ounce to one-half
ounce every three or four days. As Olden explained,
Hankton would supply him with crack—essentially on
credit—and then collect the proceeds from the sale of the
crack from him at a later time. Olden’s understanding was
that, during that period of time, Hankton was the “King” or
leader of the MCs on the North-Side of Chicago.18 Specifi-
cally highlighting Hankton’s leadership role, Olden went on
to describe an instance where Hankton had ordered Olden
and other members of the MCs not to “run”, but to stand
and fight when they became involved in an altercation with
members of a rival gang, the Gangster Disciples, over drug
peddling territory.
Finally, over objection from defense counsel, the govern-
ment introduced the plea agreements of seven of Hankton’s
co-defendants.19 In the plea agreements, which were signed
and approved by each of the co-defendants and received into
evidence at sentencing, the co-defendants describe receiving
primarily crack cocaine from Hankton. When the amounts
of crack cocaine that the co-defendants admitted Hankton
17
Although there was some ambiguity in Olden’s testimony as
to his interpretation of the terminology used by the MCs to refer
to crack cocaine, he eventually testified that he purchased a “hard
form of cocaine” from Hankton.
18
Olden also explained that in 1997, Hankton held the position of
“Don of Dons” of the Cabrini Green projects on the north side of
the city of Chicago, a position granting Hankton authority
over other gang members. Olden testified that eventually
Hankton became King of the north side of the city.
19
Introduced were the plea agreements of Davis, Woodrow Green,
Jammah Olden, Rasuah Brunner, Ngaya Brunner, Timeka
Murdock and Mekeba Gates.
12 Nos. 03-2345 & 03-2915
distributed to them were tallied, the government estimated
that the amount of crack Hankton distributed (as estab-
lished in the plea agreement documents alone) to be 1166
grams. The government concluded that, because Hankton
had admitted to distributing 156 grams of cocaine and
because the plea agreements attributed at least an addi-
tional 344 grams of crack to him, it was reasonable to
conclude from the evidence presented at sentencing that he
had distributed in excess of 500 grams of cocaine for the
purposes of U.S.S.G § 2D1.1.
At the conclusion of the hearing, the trial judge concluded
that based on the plea agreements and testimony given at
sentencing, Hankton “could have reasonably foreseen that
the amount of [crack cocaine] he was dealing . . . was well
in excess of 500 grams, and could reach even beyond 1.5
kilograms.” Indeed, the District Judge determined that the
recorded “[Title III] calls alone take the amount well beyond
the 500-gram minimum.”20 Moreover, citing the live testi-
mony and the physical evidence confiscated from Hankton’s
residence (such as correspondence identifying Hankton as
“King”), the court found that “[Hankton] [was] one of
several organizers and one of several leaders within [the]
structured criminal organization” and that he exercised
“control” and “power” over other members of the gang and
felt a four level leadership enhancement to Hankton’s
sentence was warranted pursuant to U.S.S.G. § 3B1.1(a) of
the Guidelines.21 The district judge, after hearing and
20
Meaning that, without anything more, evidence of drug
transactions referenced in the telephone recordings that Agent
Darin testified concerning was sufficient to attribute over 500
grams of crack cocaine to Hankton under the sentencing guide-
lines.
21
The court also considered the testimony of Detective Charles
and the statements made by Witnesses A and B in determining
(continued...)
Nos. 03-2345 & 03-2915 13
weighing the totality of the evidence, sentenced Hankton to
300 months imprisonment, which fell in the middle of the
applicable guidelines range of 262 to 327 months.
B. Davis’ Sentencing Hearing
Davis pled guilty to possession with intent to distribute
cocaine and admitted that on June 27, 2000, he obtained
approximately 250 grams of powder cocaine from Hankton,
with the intention of distributing it to others.22 Nonetheless,
the government argued at sentencing that Davis was
responsible for the possession of more than just the 250
grams of powder cocaine that he admitted to in the plea
agreement. Instead, the government argued that, in
addition to possessing powder cocaine, Davis was also
responsible for possessing with the intent to distribute
between 50 and 150 grams of crack cocaine, pursuant to
U.S.S.G. § 2D1.1(a)(4).23 In addition, the government
maintained that Davis’ offense level should also be in-
creased by 3 levels because he qualified under the Guide-
lines as a “manager or supervisor” of a criminal activity
involving more than five participants. See U.S.S.G.
§ 3B1.1(b). Davis disagreed with each of the proposed
21
(...continued)
that Hankton was indeed a leader of the criminal enterprise.
Specifically, the court found that Hankton’s leadership role in
the MCs was evinced by the fact that Hankton had the authority
to “order the beating of Annette Williams, knowing that the
beating could lead to her death.”
22
As part of the plea agreement, the government agreed to
recommend that Davis be granted a 3 level reduction for accep-
tance of responsibility pursuant to U.S.S.G. § 3E1.1.
23
Which would make his base offense level 32. See U.S.S.G.
§ 2D1.1(a)(4).
14 Nos. 03-2345 & 03-2915
enhancements, in the plea agreement, reserved his right to
argue his position at sentencing.
At Davis’ sentencing hearing, the government began by
calling Agent Darin to the stand as the first witness in
support of the contention that Davis’ sentence should be
enhanced for the possession with the intent to distribute 50
to 150 grams of crack cocaine. Darin testified as to a series
of taped wiretap colloquies between Hankton and Davis
about the proper way to “cook” or convert powder cocaine to
crack cocaine.24 For example, during one of the taped
consultations Davis acknowledges that he successfully
cooked at least one ounce of cocaine that day and was
“fittin’ [sic] to do more.” In the same conversation Davis
states that earlier in the day he had procured an additional
“dry nine” or nine ounces of powder cocaine in hopes of
perfecting his crack producing skills. Days later in another
conversation, Hankton asks Davis—who was apparently
having problems cooking up some crack— whether he was
cooking it on a stove or not, and Davis responds: “No. In the
microwave, like I always do.” Still a third drug conversation
portrays Davis mentioning the purchase of approximately
four and a half ounces of cocaine. Furthermore, Agent Darin
also testified as to Davis’ role as a manager/supervisor in
the MCs drug operations. In particular, Darin testified
concerning the contents of an intercepted phone conversa-
tion of July 24, 2000 between Davis and the previously
mentioned co-defendant, Jammah Olden, where the two
argue over what Davis refers to as his “workers.” Evidently
Davis became aware of the fact that Olden was selling
drugs in an area where his “workers” were and became
upset with him, telling the unidentified person (most likely
Olden) on the phone that “y’all better not be [sic] get caught
selling . . . . [t]hey’s [sic] my workers.” Two days later a
telephone call from Davis to Hankton (Jammah Olden is on
24
See supra p. 3 n.3 and accompanying text.
Nos. 03-2345 & 03-2915 15
the tape and can be overheard in the background) illus-
trates Davis’ anger over Olden invading his workers’ drug
spot or “lick” and warns that if his people weren’t allowed
to continue selling drugs in that area he would “fry that
motherf[***]r up.”
Following Agent Darin’s testimony, the government
introduced Davis’ plea agreement as well as the plea
agreements of the other co-defendants. In a number of those
plea agreements, the defendants admit purchasing crack
cocaine from Davis. For example, in her plea agreement,
Ngaya Brunner admits purchasing three “eight-balls” of
crack cocaine from Davis, which translates into approxi-
mately 10 and one-half grams.25 The prosecution concluded
that, when the plea-agreements were considered in relation
to Agent Darin’s testimony that Davis was a seasoned
“cook” of cocaine, the reasonable inference was that Davis
was responsible for possessing with the intent to distribute
50 to 150 grams of cocaine. In addition, it was the govern-
ment’s position that the plea agreements received in
evidence demonstrated Davis’ authority position in the
MCs, citing references to him as “Sultan Supreme” or
lieutenant in the gang and leader of the MCs at the Lathrop
Homes.
At the close of the sentencing hearing, after weighing the
evidence presented, the district court determined by a
preponderance of the evidence that Davis had indeed
possessed with intent to distribute between 50 and 150
grams of crack cocaine and that he was a “manager or
supervisor of a criminal activity,” within the meaning of
§ 3B1.1. The trial judge concluded that Davis’ base offense
level was 32 along with five criminal history points, mean-
ing that the appropriate sentencing range to be applied was
25
According to metric-conversions.org, .375 ounces equates to
approximately 10.63107 grams. http://www. metric-conversions.
org/
16 Nos. 03-2345 & 03-2915
210 to 262 months. The district court sentenced Davis at
the low end of the sentencing range and ordered that he be
imprisoned for 210 months.
II. ANALYSIS
On appeal, both Hankton and Davis argue that their
respective sentences should be vacated as unconstitu-
tional under the Sixth Amendment citing the district
judge’s belief that application of the guidelines was manda-
tory as well as the judge’s subsequent enhancement of their
sentences on facts which were neither proven to a jury
beyond a reasonable doubt nor admitted by the appellants.
United States v. Booker, 125 S.Ct. 738 (2005) and United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005). Both men
also contend that the district court erroneously enhanced
their sentences based on insufficient and unreliable evi-
dence. Specifically, Hankton and Davis claim that the
district court erroneously calculated the quantity of drugs
attributable to them and that evidence (e.g., wiretap
evidence) concerning their respective leadership roles in the
drug offenses was inadmissable and unreliable and should
not have been considered by the sentencing judge. In
addition, Hankton also claims that the district court
erroneously “double counted” by relying on his leadership
role in the offense to enhance his sentence under §§ 3B1.1
and 2D1.1.
A. Validity of Davis and Hankton’s Sentencing Enhance-
ments
We review the district court’s determination of drug
quantity and role in the offense, “in the same manner as
before Booker, for clear error.” United States v. Sutton, 406
F.3d 472, 474 (7th Cir. 2005) (citing United States v. Parra,
402 F.3d 452, 462 (7th Cir. 2005)). Reversal will
Nos. 03-2345 & 03-2915 17
be warranted “ ‘only if, after reviewing the entire evidence,
we are left with the definite and firm conviction that a
mistake has been made.’ ” United States v. Sheikh, 367 F.3d
683, 687 (7th Cir. 2004) (quoting United States v. Frazier,
213 F.3d 409, 417 (7th Cir. 2000)). This is a highly deferen-
tial standard of review and we refuse to “second-guess the
sentencing judge.” United States v. Cleggett, 179 F.3d 1051,
1059 (7th Cir. 1999) (citing United States v. Garcia, 66 F.3d
851, 856 (7th Cir. 1995)).
As this court has stated numerous times “[t]he law is very
clear that a sentencing judge ‘may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the
kind of information he may consider, or the source from
which it may come.’ . . . A corollary to this general principle
is the rule that a sentencing judge ‘may consider relevant
information without regard to the rules of evidence . . .
provided that the information has [a] sufficient indicia of
reliability to support its probable accuracy.’ ” United States
v. Lemmons, 230 F.3d 263, 267 (7th Cir. 2000) (quoting
U.S.S.G. § 6A1.3); see also United States v. Hardamon, 188
F.3d 843, 849 (7th Cir. 1999) (stating that during the
sentencing phase of a criminal proceeding “the rules of
evidence do not apply and the sentencing judge is free to
consider a wide range of evidence including hearsay.”). The
rationale for this is clear:
The sentencing stage of a trial is one of the most
important parts of the criminal process. In order for a
judge to be well advised of the facts surrounding the
defendant’s background, and particularly in view of the
judge’s obligation to the general public, as well as to the
defendant, to be fair, reasonable, and just, it is impera-
tive that he be allowed to draw upon a wealth of infor-
mation concerning the defendant’s background, from his
date of birth up to and including the moment of sen-
tencing. . . . In order to render justice to all the judge
must be able to impress upon a defendant through the
18 Nos. 03-2345 & 03-2915
expansive contents of an all encompassing sentencing
report that we are a country of laws and not men.
Hardamon, 188 F.3d at 849-50 (quoting United States v.
Gerstein, 104 F.3d 973, 978 (7th Cir. 1997)). Indeed, the
federal criminal code makes clear that: “No limitation shall
be placed on the information concerning the background,
character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” 18
U.S.C. § 3661. Accordingly, it is well-settled law that
“hearsay is not only an acceptable basis for a sentencing
determination,” United States v. Smith, 3 F.3d 1088, 1100
(7th Cir. 1993), it is often an “integral part of the sentenc-
ing process,” United States v. Badger, 983 F.2d 1443, 1459
(7th Cir. 2004).
Nonetheless, “[a] defendant has the due process right to
be sentenced on the basis of accurate information.” United
States v. Salinas, 62 F.3d 855, 859 (7th Cir. 1995) (citing
United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir.
1994)). Thus, “[s]o long as the information which the
sentencing judge considers has sufficient indicia of reliabil-
ity to support its probable accuracy, the information may
properly be taken into account in passing sentence.” United
States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999)
(quoting United States v. Taylor, 72 F.3d 533, 543 (7th Cir.
1995)). “Only if a defendant ‘shows that the information
before the court was inaccurate, and that the court relied on
it’ can the defendant successfully challenge his sentence.”
United States v. Smith, 3 F.3d 1088, 1099 (quoting United
States v. Johnson, 997 F.2d 248, 254 (7th Cir. June 16,
1993). In determining reliability we consider the totality of
the evidence before the sentencing judge, United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999), but a sentencing
determination may be premised on any basis supported by
the record. See United States v. Sutton, 406 F.3d 472, 474
(7th Cir. 2005) (citing United States v. Benitez, 92 F.3d 528,
538 (7th Cir. 1996)).
Nos. 03-2345 & 03-2915 19
1. Drug Quantity
Both Hankton and Davis challenge the district court’s
enhancement of their sentences based on drug quantity.
Specifically, Hankton argues that: (a) statements made
by government witnesses at sentencing constituted un-
reliable hearsay and should not have been considered;
and Hankton and Davis argue that (b) the introduction of
plea agreements signed by co-defendants in the case
also qualified as unreliable hearsay evidence and like-
wise should not have been considered. We disagree.
a. The District Court’s Determination of Hankton’s
Drug Quantity
Hankton’s initial argument is that statements made by
Agent Darin concerning various wiretap phone conversa-
tions should not have been relied on by the sentencing
judge in his determination that Hankton was responsible
for the distribution of more than 500 grams of crack under
the guidelines. We disagree and believe this argument
is misplaced.
Hankton has failed to point to anything in the record
which might render Agent Darin’s testimony at sentencing
unreliable, aside from his assertion that portions of his
Darin’s testimony constituted inadmissibly hearsay. How-
ever, as stated above, the rules of evidence do not apply
during sentencing proceedings and “hearsay is not only
an acceptable basis for a sentencing determination,” United
States v. Smith, 3 F.3d at 1100, it is often an “integral part
of the sentencing process.” Badger, 983 F.2d at 1459.
In addition, the district judge specifically found Agent
Darin to be a “credible witness”, a determination which
bolstered the judge’s decision that Darin’s testimony
20 Nos. 03-2345 & 03-2915
concerning the wiretap conversations was reliable. See
United States v. Torres-Ramirez, 213 F.3d 978, 980-81 (7th
Cir. 2000) Under circumstances such as these we are
unwilling to find fault with the sentencing judge’s decision
to credit Darin’s statement in determining the drug quan-
tity attributable to Hankton. Torres-Ramirez, 213 F.3d at
980-81.
Also, the district court did not rely solely on witness
testimony concluding that Hankton was responsible for
distributing more than 500 grams of crack. The government
also introduced the signed plea agreements of other mem-
bers of the MCs in which they admitted that they
had purchased crack cocaine from Hankton. Although the
plea agreements of the co-defendants may have consti-
tuted hearsay, see FED. R. EVID. 801, that evidence was
corroborated by other evidence submitted at sentencing,
and thus could reasonably be considered reliable by the
sentencing judge. See United States v. Martinez, 289 F.3d
1023, 1028-29 (7th Cir. 2002) (holding that reliability
may be established by corroborating evidence). Indeed, the
plea agreements were more than sufficiently corrobo-
rated at Hankton’s sentencing hearing by the credible
testimony of the live witnesses, i.e., Agent Darin and
Detective Charles. As the district court concluded, “given
the entirety of the government’s submission, [Agent Darin’s
testimony] is reliable evidence and should be given substan-
tial weight by the court . . . [i]t is corroborated . . . [i]t all
ties together. It is consistent with what the court has heard
as the various defendants have entered their pleas of
guilty.” We agree with this assessment. See id.What’s more, the evidence submitted at sentencing was
internally consistent with the totality of the evidence in the
record and various aspects of that evidence corroborated
other aspects. For example, the co-defendants’ plea agree-
ments state that Hankton sold them primarily crack
Nos. 03-2345 & 03-2915 21
cocaine—according to the government’s calculation, 1156
grams total. This evidence corroborates both the wiretap
phone conversations as well as Agent Darin’s testimony
as to the substance of those phone calls in which Hankton
solicited the purchase of large amounts of crack cocaine,
e.g., telling Olden that he could supply him with “a half,” or
a half an ounce of crack. See Salinas, 62 F.3d at 859(stating that “[e]ach member of a conspiracy is accountable
for the amount of drugs with which he was directly in-
volved, and for amounts involved in transactions that were
reasonably foreseeable.”). As this court held in United
States v. Torres-Ramirez, credible corroborating testimony
is sufficient to provide hearsay evidence, such as the plea
agreements and the statements therein, with an “indicia of
reliability” and satisfies the defendant’s entitlement to have
his sentence determined based on reliable evidence. Id. at
980. Also, the reliability of the plea agreements—as well as
Agent Darin’s testimony for that matter—was bolstered by
the fact that, at sentencing, Hankton took advantage of “a
reasonable opportunity to rebut the hearsay evidence used
against him.” United States v. Barnes, 117 F.3d 328, 338
(7th Cir. 1997) (quoting United States v. Francis, 39 F.3d
803, 810 (7th Cir. 1994)).
Further, even if we were to assume, arguendo, that the
testimony given by Agent Darin as well as the co-defen-
dants’ plea ageements was unreliable, the live testimony of
Jammah Olden, without more, supported—or at the least
lent great credence to—the conclusion that Hankton
distributed in excess of 500 grams of crack cocaine. As
recounted above, Olden testified that for a period of five
months (between June and October of 2000) Hankton
personally supplied him with individual distribution
amounts of crack cocaine—ranging in quantity from one
eighth of an ounce to one ounce—every three to four days.
According to Olden’s testimony, which was unrebutted at
sentencing, it was reasonable for the district court to
22 Nos. 03-2345 & 03-2915
conclude that Hankton personally distributed between 134
and 1071 grams of crack cocaine, to Olden alone, in the
space of just these five months.26 See Salinas, 62 F.3d at
859; see also United States v. Durham, 211 F.3d 437, 444
(7th Cir. 2000) (stating that “estimates of drug quantity are
acceptable if they are based on evidence possessing
a sufficient indicia of reliability and not nebulous eyeball-
ing”).
Thus, because the plea agreements submitted at sen-
tencing were corroborated by the credible testimony given
by Agent Darin, as well as the live testimony of co-defen-
dant Olden—both of which were subject to thorough cross-
examination at sentencing—we hold that the sentencing
judge did not err, much less commit clear error when
considering this most reliable evidence when determining
that Hankton was responsible for distributing in excess of
500 grams of crack cocaine pursuant to U.S.S.G. § 2D1.1.
b. Davis’ Drug Quantity Argument
Davis also argues that the sentencing court erred by
admitting unreliable hearsay evidence when determining
that he possessed with intent to distribute 50 to 150 grams
of cocaine under U.S.S.G. § 2D1.1. However, unlike
Hankton, Davis does not claim that Agent Darin’s testi-
mony was unreliable. Instead, Davis claims only that the
introduction of the co-defendants’ plea agreements consti-
tuted clear error due to the fact that the agreements were
26
Even a conservative estimate of the amount of cocaine Hankton
supplied Olden with amounts to approximately 4.6875 ounces or
134 grams of crack cocaine (which is equal to Hankton supplying
Olden with 1/8 oz. of crack cocaine every four days over a period
of five months). On the high end, Hankton may have supplied
Olden with as much as 1071 grams of crack (which is equal to
1 oz. of crack every four or five days over a period of five months).
Nos. 03-2345 & 03-2915 23
inadmissible hearsay. However, as noted above, the rele-
vant inquiry is not whether the plea agreements submitted
at sentencing constituted hearsay, see Smith, 3 F.3d at
1100, but whether the plea agreements included a “suffi-
cient indicia of reliability to support [their] probable accu-
racy,” Taylor, 72 F.3d at 543, which we conclude that they
did.
The co-defendants’ plea agreements submitted at Davis’
sentencing demonstrated that Davis was in the habit of
distributing crack cocaine. In particular, Ngaya Brunner
admits to purchasing approximately 10 and one-half grams
of crack from Davis. This evidence was fully corroborated by
the testimony of Agent Darin, which the sentencing judge
expressly found to be credible. Specifically, Agent Darin
testified as to the meaning and context of a number of
intercepted phone conversations Davis had with Hankton
and other individuals in which Davis discussed “cooking”
large amounts of powder cocaine in order to produce crack
cocaine. In at least one of those conversations Davis states
that he purchased powder cocaine specifically for the
purpose of further processing it in order to manufacture and
distribute the resulting crack. See supra p. 13. Thus,
because witness testimony—the testimony of a witness,
Agent Darin, whom the district judge had previously
determined to be credible—was introduced to corroborate
information contained in the co-defendant’s plea agree-
ments and thus infused that evidence with an “indicia of
reliability.” See United States v. Martinez, 289 F.3d at 1028-
29; Torres-Ramirez, 213 F.3d at 980. This is not to mention
the fact that Davis was provided with ample opportunity to
rebut the hearsay evidence proffered against him in the
form of the co-defendant plea agreements, either by calling
his own exculpatory witnesses or through his cross exami-
nation of Agent Darin. See Barnes, 117 F.3d at 338. The fact
that Davis called no witnesses at sentencing and failed to
successfully discredit Agent Darin on cross-examination,
24 Nos. 03-2345 & 03-2915
however, evinces nothing more than a shortcoming in the
presentation of his case and falls far short of establishing
error on the part of the trial judge. In other words, Davis
must present this court with more than conclusory allega-
tions that a government witness is unreliable; he must
present evidence which would in some way rebut that
testimony or demonstrate that it is inaccurate and should
not have been relied upon by the sentencing judge. See
United States v. Smith, 3 F.3d 1088, 1099.
Thus, because Agent Darin’s credible testimony corrobo-
rated the information contained in the co-defendants’ plea
agreements, the sentencing court did not err in finding that
evidence reliable in concluding that Davis was responsible
for possessing with the intent to distribute 50 to 150 grams
of crack cocaine.27
27
Davis also challenges the enhancement of his sentence under §
3B1.1(b) for being a “manager or supervisor (but not an organizer
or leader)” in the criminal activity on identical grounds. However,
because we have held that the court’s consideration of the co-
defendant’s plea agreements at sentencing did not constitute clear
error under any circumstances, we need not separately discuss
Davis’ challenge to the enhancements to his sentence under §
3B1.1(b).
Nonetheless, even if we were to hold that the plea agreements
were unreliable and should not have been considered, the en-
hancement was still supported by the record. See Sutton, 406 F.3d
at 474. The record reflects that Davis, during intercepted phone
conversations, repeatedly referred to people on the street selling
drugs as his “workers.” See supra p. 13. Davis also threatened
violence when he learned that Olden’s drug dealers had invaded
his “territory.” This evidence unquestionably evinces a level of
control sufficient to satisfy the “manager or supervisor” enhance-
ment pursuant to § 3B1.1(b). See, e.g., United States v. Morales,
994 F.2d 386, 388 (7th Cir. 1993) (holding that “[i]t is enough that
more than one person was involved in the criminal activity and
(continued...)
Nos. 03-2345 & 03-2915 25
B. Hankton’s Leadership Role in the Offense
Hankton next claims that it was clear error for the
district court to determine that he was an “organizer or
leader of a criminal activity” pursuant to § 3B1.1(a) of the
Guidelines. Specifically, he claims that “notwithstanding
evidence that he held a high rank in the MCs, his role in
that organization did not make him a leader or organizer in
a drug distribution offense.” Hankton stresses that his rank
in the MCs alone did not translate into leadership responsi-
bility, much less control over the gang’s drug distribution
activities. Said differently, Hankton takes issue with the
sentencing judge’s focus on his leadership conduct which he
claims is “unrelated” to the underlying crime of distribution
of a controlled substance. We disagree.
The district court’s “determination concerning a defen-
dant’s role in the offense is a finding of fact, subject to a
clearly erroneous standard of review on appeal,” United
States v. Brown, 900 F.2d 1098, 1101 (7th Cir. 1990), and
this remains the case post-Booker. See Parra, 402 F.3d
at 462. Section 3B1.1 of the sentencing guidelines is ap-
plicable where the “defendant was an organizer or leader of
a criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a). This court
has previously made clear that the “control” exerted by a
defendant may either be direct or indirect in nature. See
United States v. Barnes, 117 F.3d 328, 337 (7th Cir. 1997).
As such, “the defendant must have exercised some degree
of control over others involved in the commission of the
offense or he must have been responsible for organizing
others for the purpose of carrying out the crime.” Id.(quoting United States v. Carson, 9 F.3d 576, 584 (7th Cir.
27
(...continued)
that the defendant played a leadership as distinct from a
followership role”) (citing United States v. Herrera, 878 F.2d 997(7th Cir. 1989)).
26 Nos. 03-2345 & 03-2915
1993)); see United States v. Reneslacis, 349 F.3d 412, 417
(7th Cir. 2003). Some of the factors for a sentencing court to
consider when determining whether a defendant held a
leadership role under § 3B1.1 include: “the defendant’s (1)
exercise of decision-making authority; (2) participation in
committing the offense; (3) recruitment of accomplices; (4)
degree of participation in planning or organizing the
criminal activity; (5) degree of control or authority exercised
over others involved in the criminal activity; and (6) the
nature and scope of the illegal activity.” United States v.
Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (citing United
States v. Noble, 246 F.3d 946, 953 (7th Cir. 2003)).
At Hankton’s sentencing, the judge enumerated a number
of factors which led him to the conclusion that Hankton was
a “leader or organizer” of a criminal activity—here the
distribution of crack cocaine—within the meaning of §
3B1.1(a). For example, although the judge recognized that
Hankton was not the “sole and only leader of the organiza-
tion,” he did “exercise control . . . . [and] power . . . . [t]he
telephone calls clearly establish that . . . . [t]hey show his
concern for the organization itself, its image.” In addition,
the court referenced evidence presented by the government
which illustrated Hankton’s role in the murder of Annette
Williams, see supra pp. 7-8, when stating that “Hankton
exercised authority over persons, certainly well more than
five or ten.” However, Hankton claims that “rather than
directing its remarks to Mr. Hankton’s conduct as it related
to the actual offence, i.e., drug distribution, the court
dwelled on Mr. Hankton’s gang activities.” This statement
is nothing more than a self-serving red herring.
While it may be true that the sentencing judge primarily
focused on Hankton’s gang activities, there was good reason
for doing so. The evidence presented at sentencing did not
separate Hankton’s activities into two distinct categories of:
(1) gang activities; and (2) drug activities. Indeed, it would
be antithetical to consider these to be mutually exclusive
Nos. 03-2345 & 03-2915 27
endeavors. Instead, all of the evidence presented—as well
as commonsense—suggest that, in fact, Hankton’s gang
activities were intimately, related to and intertwined with,
his drug distribution activities. In fact, both Agent Darin
and Jammah Olden testified that the gang’s sole source of
revenues was from the sale of illegal drugs. Also, informa-
tion from the wiretaps demonstrated that Hankton used his
position in the gang to facilitate his drug transactions,
collect money for himself and protect the gang’s drug
dealing territory. See supra p.7-9. What’s more, Hankton’s
role as leader and organizer is rather persuasively illus-
trated by the fact that he had the power within the MCs
organization to order the brutal beating and murder of one
of the gang’s members, Annette Williams. See id. The fact
that Williams’ murder appeared to involve a dispute over
drug money, as opposed to drugs, would not preclude the
sentencing judge from inferring that the incident was
related to the MCs drug activities or from concluding that
Hankton exerted the same authority over the gang’s drug
activities as he did over ordering beatings or murder. After
all, a sentencing court in making its sentencing determina-
tion must “draw inferences from a variety of data, including
the defendant’s demeanor and information in the
[presentence report], in order to reach [its] conclusion.” See
United States v. Frazier, 213 F.3d 709, 417 (7th Cir. 2000)
(quoting United States v. Fones, 51 F.3d 663, 665 (7th Cir.
1995)).
Thus, because Hankton was a leader of the MCs, and
because the gang was primarily concerned with dealing
illegal drugs, it was entirely reasonable and logical for
the sentencing judge to infer that Hankton’s role as leader
of the gang was related to his distribution of crack cocaine.28
28
Although not dispositive as to his role as a leader in the
organization, Hankton is referred to in the record first as “don”
(continued...)
28 Nos. 03-2345 & 03-2915
C. Hankton’s Double Counting Claim
Hankton also claims that the district court erroneously
double counted when imposing his sentencing enhance-
ments because the court considered his leadership within
the MCs street gang both to enhance his sentence for
finding him responsible for distributing more than 500
grams of cocaine, under § 2D1.1, and for being an organizer
28
(...continued)
(during the late 1990s) and then as “king” (beginning in 1999). See
supra pp. 8-9; see also U.S.S.G. § 3B1.1 n.1 (“In distinguishing a
leadership role from one of mere management or supervision,
titles such as “kingpin” or “boss” are not controlling.). Nonethe-
less, testimony from Chicago Police Detective Charles, as well as
Agent Darin and Jammah Olden illustrated the power over the
drug trade and gang activities that the title afforded Hankton. For
example, Agent Darin testified that as the “king,” Hankton was in
charge of all the activities undertaken by the MCs on the north-
side of the city, including the distribution of illegal narcotics. See
supra p. 9.
Hankton argues that the testimony of Detective Charles and
Agent Darin as to his role in the MCs should not have been
considered because they “were [not] qualified as experts in
anything.” This is misleading, for the district court made an
express finding that Detective Charles was indeed an expert
on the MCs, see supra p. 7, as well as expressly finding him to be a
“credible witness.” Likewise, Agent Darin was also express-
ly found by the judge to be a credible and reliable witness. See
supra p. 19-20. Nevertheless, as we have stated, the rules of
evidence do not apply at sentencing, see Hardamon, 188 F.3d
at 849, and the judge was entitled to consider any relevant
evidence assuming that evidence included a “sufficient indicia
of reliability.” See Robinson, 164 F.3d at 1070. The testimony
given by Detective Charles and Agent Darin was more than
reliable and therefore properly considered by the district court
in sentencing Hankton.
Nos. 03-2345 & 03-2915 29
or leader of a criminal activity, under § 3B1.1. We disagree.
Improper and impermissible double counting only “occurs
when a district court imposes two or more upward adjust-
ments within the guideline range, when both are premised
on the same conduct.” U.S. v. Haines, 32 F.3d 290, 293 (7th
Cir. 1994) (emphasis in original). Put simply, a district
court may not characterize the same conduct in two differ-
ent ways to arrive at two separate sentence enhancements
that result in an upward adjustment of the sentencing
range. See United States v. Schmeilski, 408 F.3d 917, 919
(7th Cir. 2005). Also, “although premising multiple en-
hancements on ‘identical facts’ constitutes impermissible
double counting . . . the presence of some overlap in the
factual basis for two or more upward adjustments does not
automatically qualify as double counting.” Id. (internal
citations omitted); (citing United States v. Parolin, 239 F.3d
922, 929 (7th Cir. 2000). Where different aspects or compo-
nents of the defendant’s behavior are addressed by different
enhancements, improper double counting has not occurred.
See id. We review the district court’s application of the
Sentencing Guidelines de novo. See, e.g., United States v.
Von Loh, 417 F.3d 710, 712 (7th Cir. 2005).
Hankton’s claim of impermissible double counting finds
no support in the record, much less the voluminous amount
of case law on this subject. The disparate nature of behavior
addressed under each enhancement, without more, suggests
that impermissible double counting pursuant to those
particular enhancements would be most unlikely. See
United States v. Schmeilski, 408 F.3d 917, 920 (7th Cir.
2005). In fact, §§ 2D1.1 and 3B1.1(a) are premised on
entirely different conduct; for while an individual may be
found to have distributed a certain quantity of drugs
making him eligible for a sentence enhancement under §
2D1.1, he need not be a “leader or organizer” of a criminal
activity, as described by § 3B1.1, to do so. Nonetheless,
Hankton argues that the sentencing judge’s mention of his
30 Nos. 03-2345 & 03-2915
leadership role in the organization while finding that he
was also eligible for a sentence enhancement for distribut-
ing more than 500 grams of cocaine under § 2D1.1 consti-
tuted impermissible double counting. Nothing could be
further from the truth.
When determining the drug quantity attributable to
Hankton pursuant to § 2D1.1 the judge specifically found
that, considering the admissions of the defendant in the
plea agreement as well as the evidence concerning the
intercepted phone conversations, Hankton was responsible
for distributing “well beyond . . . 500 gram[s]” of crack. It is
true that later in the same monologue the judge mentions
“the position” Hankton occupied to illustrate the point that
the actual amount attributable to him “could reach even
beyond 1.5 kilograms.” It is clear from those statements,
however, that without taking Hankton’s leadership role in
the offense into consideration, the judge determined that
the sentencing enhancement should apply, making any
other drug amounts attributable to Hankton via his leader-
ship role superfluous.29 Said differently, the judge concluded
that Hankton was personally responsible for distributing
“well beyond . . . 500 gram[s]” of crack cocaine, which
justified the enhancement of his sentence under § 2D1.1.
Accordingly, consideration of any additional amounts
attributable to him via his leadership role in the MCs was
superfluous.30
29
However, even if the judge had taken into account Hankton’s
leadership role when determining the quantity of drugs at-
tributing attributable to him, this would not have been improper
because, as explained above, although there may have been some
overlap in the factual predicate for both enhancements, each
enhancement “addressed distinct aspects of the defendant’s
conduct.” Schmeilski, 408 F.3d at 919.
30
Although they very well could have been considered. See
(continued...)
Nos. 03-2345 & 03-2915 31
Thus, since § 2D1.1 and § 3B1.1 address different conduct
and because the trial judge did not rely on Hankton’s
leadership role in the MCs to enhance his sentence pursu-
ant to § 2D1.1, there was no improper double counting and
Hankton’s claim fails in this regard.
D. Paladino Remand
Finally, Hankton and Davis request that we order a
limited remand to determine whether the district court
would have imposed a different sentence had it known that
the Sentencing Guidelines were merely advisory. See United
States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005).
Because neither Hankton nor Davis raised a Booker issue
before the district court our review is for plain error only.
See id. As this court has held, the pre-Booker mandatory
application of the sentencing guidelines ipso facto consti-
tutes plain error. See United States v. White, 406 F.3d 827,
2005 WL 1023032, at *7 (7th Cir. May 3, 2005); United
States v. Castillo, 406 F.3d 806, 2005 WL 1023029, at *15
(7th Cir. May 3, 2005). However, even where a plain error
is found to exist, a court of appeals may “exercise its
discretion to notice a forfeited error . . . only if . . . the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Cotton, 535 U.S.
625, 631 (2002). In other words, we may correct such an
error only if it is “intolerable,” or results in a “miscarriage
of justice.” See Paladino, 401 F.3d at 481. Allowing an
illegal sentence to stand would “constitute a miscarriage of
justice,” see White, 406 F.3d at 835-36.
On the record before us, we cannot ascertain with any
exacting degree of certainty whether the sentencing judge
would have imposed identical sentences for Hankton and
30
(...continued)
Salinas, 62 F.3d at 859.
32 Nos. 03-2345 & 03-2915
Davis had he known that the sentencing guidelines were
not mandatory at the time. Indeed, the district court’s
imposition of a sentence in the middle of the range for
Hankton, see supra p. 13, and at the lower-end of the range
for Davis, see supra p. 16, may be an indication that, having
been vested with greater discretion, the judge may well
have imposed a sentence lighter than that required by the
guidelines. We simply cannot be sure. Accordingly, lest
we allow an illegal sentence to stand, we believe it appropri-
ate to order a limited remand in this case, while retaining
jurisdiction, for proceedings consistent with this court’s
decision in Paladino, 401 F.3d at 483-84.
III. CONCLUSION
Because we are convinced that the district court did not
impermissibly consider unreliable evidence in enhancing
Hankton or Davis’ sentences for drug quantity and their
respective leadership roles in the offense we uphold the
validity of the sentencing enhancements imposed. In
addition, we reject Hankton’s claim that the sentencing
judge’s application of U.S.S.G. §§ 2D1.1 and 3B1.1 to his
sentence constituted improper double counting. We do
however order a LIMITED REMAND of both Hankton and
Davis’ sentences in accordance with the procedure set
forth in United States v. Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-05